Meta Asks to File Extra Brief in Ninth Circuit Appeal of Simulated Casino Game Ruling

Meta Platforms Inc. urged the Ninth Circuit Court of Appeals for permission to file a reply in the possible appeal concerning the application of Section 230 of the Communications Decency Act (CDA) to a case concerning casino games hosted on Meta platforms. The proposed brief argued that the court should accept the interlocutory appeal which it said “raises a legal question of paramount importance to the marketplace for online content created and sold by third parties.”

The consolidated class action concerns “social casinos” and the role of Meta, alongside co-defendants Apple and Google, in distributing and profiting from games which the plaintiffs claim violate various state gambling laws. Social casino games are not only addictive in nature, but also take players’ fiat currency without offering them a fiat return, only more chances to play, the complainants said. 

The lawsuit ultimately accused the defendants of engaging in a “social casino enterprise,” through which they promote and sell the unscrupulous games while earning a tidy profit on app store sales and in-app purchases.

Last month, Judge Edward J. Davila issued a mixed dismissal motion ruling largely on the defendants’ Section 230 defense. The court upheld the plaintiffs’ claim that the social media platforms violated state law by engaging in the acts of selling gambling chips. Judge Davila said this conduct was not shielded by Section 230 because it concerns the platforms’ acts rather than those of third parties, like casino app game developers.

In addition, however, Judge Davila sua sponte certified his order for immediate interloctuory appeal. Additionally, he stayed the case pending the appellate court’s decision to accept or decline certification, citing the possibility that “reasonable minds could differ” about the application of Section 230.

Since then, Meta has pressed the Ninth Circuit to take up the appeal. In last week’s proposed brief, the company called Judge Davila’s ruling a “novel exception to Section 230 for websites that process transactions for online content created and sold by third parties calls for immediate review, as the district court itself recognized.”

Policy-wise, Meta argued that the provision is an immunity shield whose application should be resolved at the earliest possible stage of litigation to prevent long and costly legal battles. Meta claimed that without an interlocutory appeal, it will be forced to “defend itself against a litany of claims based on third-party content hosted and sold on Facebook.”

The plaintiffs are represented by Edelson PC, interim lead counsel, among others. Meta Platforms is represented by Gibson Dunn & Crutcher LLP and Paul Hastings LLP.